District Nursing Association of Fall River

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District Nursing Association of Fall River and Local 526, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case 1-RC-13092 May 1, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 2, 1974, Petitioner filed a petition under Section 9(c) of the National Labor Relations Act, as amended, thereby seeking to represent certain of the Employer's employees. Subsequently, the Employer moved for dismissal of the petition. A formal hearing on the petition was held on January 18, 1974, before Hearing Officer Tamara A. Gilman. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8 , as amended, the Regional Director for Region I directed the transfer of the case to the Board for decision. Thereafter the Petitioner filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the heanng and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in the case the Board finds: 1. The Employer is a corporation organized under the laws of the Commonwealth of Massachu- setts and engaged in providing health care and nursing services to patients in their homes in accordance with doctors' orders.' In 1972, the Employer had gross income of $224,656.52. Of this total $55,827.59 was received from Medicare; $16,185.00 from Medicare Cost Analysis Adjustment; $29,922.52 from the Welfare Department; $3,349.51 from the Veterans Adminis- tration; and $2,336.14 from the Board of Health. In addition, the Employer received $12,575.78 from 1 Although the Employer maintained at the hearing that it is an organization of a "chartable nature" it failed to submit evidence that it is incorporated under the not-for-profit section of Massachusetts law as a charitable organization Accordingly, the Board has no basis on which to make a finding in this regard In any event under the circumstances of this case and particularly in light of our decision in Drexel Home, Inc., 182 NLRB 1045, our conclusion here would not be altered even assuming the Employer is formally organized as a chartable entity. 2 Visiting Nurses Association, Inc., 188 NLRB 155; Visiting Nurses Association of Sacramento, 187 NLRB 731. private patients; $4,640.83 from Blue Cross-Blue Shield ; and $2, 121.16 from the American Cancer Society. While the Employer does not maintain hospital or nursing home facilities it nevertheless renders health care services and falls within the related health care facility category over which we have previously asserted jurisdiction.2 Accordingly, as the Employer receives gross revenues of over $ 100,000 per year, we find that its operations have a substantial effect on commerce and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(cXl) and Section 2(6) and (7) of the Act.3 4. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All registered nurses and licensed practical nurses at the Employer's 101 Rock Street, Fall River location, excluding the director, the assistant director, the supervisor, the coordinators, the part-time employee who services the Freetown area, all office clerical employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] CHAIRMAN MILLER, dissenting: I would not regard the charitable furnishing of essentially local health care and nursing services as an industry substantially affecting interstate com- merce, nor am I aware of any jurisdictional standard applicable thereto. Accordingly, I would dismiss the petition. I am of the opinion, upon further consideration, that Visiting Nurses Association of Sacramento, 187 NLRB 731, was decided erroneously and I would overrule it. 3 At the hearing the Employer contended that a collective-bargaining agreement between itself and the Massachusetts Nursing Association constitutes a bar to the petition herein . An examination of the documents submitted at the hearing, including the collective-bargaining agreement and a letter from the Nursing Association to the Employer dated October 30, 1973, indicates however that notice to terminate the agreement was given more than 60 days in advance of the agreement's expiration date. In any event, the record indicates that the Nursing Association has withdrawn any claim to representation that at may have had. Accordingly , we find that the agreement is not a bar to the petition herein. 210 NLRB No. 73